Requests for sanctions are becoming more and more commonplace and warrant developing risk management protocols. Whether it is a letter sent pursuant to Federal Rule of Civil Procedure (FRCP) 11 or a state law equivalent, the threat of sanctions should not be taken lightly. Prior to initiating a lawsuit or asserting a claim, the factual and legal basis for doing so needs to be properly vetted. This article discusses FRCP 11 and frivolous litigation letters from a practice and risk management perspective to provide practitioners with a helpful refresher for the new year.

FRCP 11

Distilled to its essence, FRCP 11 requires that a lawyer conduct an analysis of the factual and legal basis for a motion or pleading. The lawyer’s signature certifies to the court that the lawyer reviewed the papers, performed a reasonable inquiry as to the contents, is satisfied that the facts and law are sufficient, and is not submitting the papers in bad faith or for an improper purpose. See Fed. R. Civ. P. 11(b)(1)-(4); see also In re Keegan Management Securities Litigation, 78 F.3d 431 (9th Cir. 1996) (reversing imposition of sanctions where the “lower court based its decision on … on plaintiffs attorneys’ subjective knowledge at the time they filed the complaint … while it is true that reckless filings may be sanctioned, and nonfrivolous filings may also be sanctioned, reckless nonfrivolous filings, without more, may not be sanctioned.”). A party may move for sanctions under FRCP 11 only after providing the other party with notice of the deficiency—or frivolity of the papers—and a reasonable opportunity to respond. “Threatening sanctions casually or as a matter of course has no place among officers of the court—again, except in the most egregious cases and, then, only as a last resort.” See Harrison Prosthetic Cradle v. Roe Dental Laboratories, 608 F.Supp.3d 541, 550 (N.D. Oh. 2022).